Balkinization  

Thursday, July 10, 2008

Al Qaeda on the Speed-Dial

Marty Lederman

"There is nothing to fear in the [new FISA] bill," says lead sponsor Senator Kit Bond, "unless you have Al Qaeda on your speed dial."

Glenn Greenwald catches an eerie historical "coincidence": Back in the late 1960's Congress similarly enacted a bill that gave the President virtually unfettered discretion to engage in electronic surveillance for national security purposes. Responding to anxieties about possible abuses of this authority, Attorney General John Mitchell assured Americans that "Any citizen of this United States who is not involved in some illegal activity has nothing to fear." Of course, that promise was empty, and the ensuing gross abuses are what prompted Congress to enact FISA nine years later, thereby providing some judicial oversight to prevent such intrusions on the privacy of U.S. persons.

I'd like to focus, however, on a much more fundamental problem with Senator Bond's statement: It's simply not true, even if the government does not abuse the new statutory authorities.

The new statute permits the NSA to intercept phone calls and e-mails between the U.S. and a foreign location, without making any showing to a court and without judicial oversight, whether or not the communication has anything to do with al Qaeda -- indeed, even if there is no evidence that the communication has anything to do with terrorism, or any threat to national security.

As I've previously explained, the NSA's objective here is not simply to surveil foreigners who it already suspects as being part of al Qaeda -- it can easily obtain a FISA order as to those folks. Nor is the purpose of the new law to allow warrantless surveillance of international-to-international calls -- that's already legal, too. As is the warrantless overseas interception of calls between foreigners and U.S. persons.

What the agency is seeking, instead, is to be able to intercept foreign communications (i) coming across domestic wires where (ii) NSA does not have probable cause to believe that any of the parties is a terrorist or agent of a foreign power; and (iii) there is a chance that some of the intercepted communications will be with persons in the U.S.

The new law allows the NSA to do this, by permitting what David Kris has called a form of "vacuum-cleaner" surveillance that (in the words of the new law) "target[s] . . . persons reasonably believed to be located outside the United States to acquire foreign intelligence information."

Under this new standard, there's no need that the surveillance have any connection to al Qaeda, or terrorism, or even to national security. The only substantial requirements are that someone overseas be a "target" and that one "significant purpose" of the surveillance be to acquire "foreign intelligence information" -- which is very broadly defined to include most anything that occurs overseas and in which the federal government might have an interest (including information necessary to protect against the full range of foreign threats to national security, and information with respect to a foreign power that is necessary to the national defense or foreign affairs).

In the course of this vast interception of foreign-to-domestic communications, the NSA will inevitably obtain extensive information about U.S. persons having no connection whatsoever to al Qaeda or terrorism. The bill does require a modest type of "minimization" procedures designed to "minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons." Which sounds reassuring. However, such minimization would be required only "consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information." (And recall how broadly "foreign intelligence information" is defined.) Moreover, even where the information is not foreign intelligence information, the law permits "the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes."

That is to say, even if you were not the original target of the surveillance, the government can make use of and disseminate information about you if your international phone calls or e-mails reveal evidence of any crime. And, of course, if those same communications provide evidence that you are an agent of a foreign power, that evidence can then be used to obtain an order for surveillance of your own phone and/or computer more broadly, under FISA itself.

Accordingly, Kit Bond's statement should be revised to read:

"There is nothing to fear in the new FISA bill unless you make international phone calls or e-mails that arguably implicate the federal government's national security, foreign affairs or law enforcement interests."

Comments:

In our war with al Qaeda and its allies we have and continue to capture telephone numbers and email addresses in possession of the enemy. However, just because the enemy possessed the number or address does not mean that the users are also enemy agents.

The purpose of the surveillance is to determine whether other enemy agents are in fact using these numbers. This was impossible under he old individualized FISA probable cause standards.

The new standards will allow this common sense surveillance with congressionally and judicially reviewed minimization rules in case innocent US persons are using these numbers or addresses.

However, if another enemy agent is identified, then he or she may be properly targeted and one would indeed have to be conversing with the enemy to be included in this surveillance.
 

The entire history of public utterances by federal officials on this subject is a long, nauseating history of lies intended to give false assurance to the American public.

To take just one example, George W. Bush April 2004: "...any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."

Of course, as he spoke those lying words, he knew his executive order authorizing warrantless wiretapping had been in place for years at that time.

The usual defense of those lies is oh gosh, we don't want al Qaeda to know what we're doing.

Of course when policy is being framed and legislators and the public asked to sign on, lying is inexcusable.
 

Given the daisy chain of links that led to Parhat being held, the end result I suspect is that the state is going to surveil anyone it once. I have proceeded for years on the basis that I have no privacy because of public or private actors. It is a really lousy way to live, but I am resigned to it. I am also certain that the state will abuse this power because there are no bounds in the state's mind. I am just sorry for my kids that they will spend much of their growing up years in a place where state surveillance is the rule (our version of Stasi I suspect will be the norm).

Of course, all will say this is keeping us safe. But, as with most things, I think it is more about somebody getting on a gravy train from the government for years to come. National Security Welfare.

Best,
Ben
 

so hopefully those private contractors who are engaging in war profiteering nad have "offshored" themselves might now have to be a bit more circumspect in their planning and discussion of their schemes .. eh ??

indeed .. fey
 

I wonder how these new powers can be used for industrial espionage.

Everybody is talking about how individuals can be listened in on. But the surveillance also apply to companies. Imaging the US government using this new found tool to sell its secretly acquired knowledge to American companies.

Stealing patents, trade secrets, etc.
 

You all are wasting your time complaining about Bush among yourselves on this website's comments. If you really want to let the president know you think he sucks, just call a friend in London and you can be sure the President will get the message that way.
 

-- If you really want to let the president know you think he sucks, just call a friend in London and you can be sure the President will get the message that way. --
.

More reliable method - call a serviceman in Iraq or Afghanistan and register the same complaint, then talk about a wedding and a big cake.
 

So -- do we think they are going to use this power for "immigration" surveillance? If not, why not?

National security, you know.
 

-- do we think they are going to use this power for "immigration" surveillance? If not, why not? National security, you know. --
.

"We?" You gotta mouse in your pocket, kimosabe? ;-)

.

Article II power is useful to gather "foreign intelligence information," which is a clinically defined subset of "national security." See the Keith case. And so, one is prompted to wonder what sort of information the words "foreign intelligence" encompass.

.

The short answer is "foreign intelligence" is information that is used to negotiate foreign affairs (a generally separate action from mounting criminal prosecution - foreign affairs is war by diplomacy and military force).

.

But 50 USC 1801 broadens that short answer. I presume this is derived from Court rulings, and is not a construct of the administration or Congress.
.
(e) “Foreign intelligence information” means—
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against—
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to—
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.
 

kit bonds' statement could be shortened even further,

There is nothing to fear in the new FISA bill unless you make international phone calls or e-mails.
 

-- kit bonds' statement could be shortened even further, "There is nothing to fear in the new FISA bill unless you make international phone calls or e-mails." --
.

Senator Bond didn't include the limitation "international."
 

You write -

Moreover, even where the information is not foreign intelligence information, the law permits "the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes."
________

Where in HR 6304 does it say that? I cannot find that statement.
 

H.R.6304 broadens "foreign intelligence information" to include so-called WMD related conversations.
.
(3) FOREIGN INTELLIGENCE INFORMATION- Subsection (e)(1)(B) of such section 101 is amended by striking 'sabotage or international terrorism' and inserting 'sabotage, international terrorism, or the international proliferation of weapons of mass destruction'.
(4) WEAPON OF MASS DESTRUCTION- Such section 101 is amended by adding at the end the following new subsection:
p) 'weapon of mass destruction' means--
1) any explosive, incendiary, or poison gas device that is designed, intended, or has the capability to cause a mass casualty incident;
2) any weapon that is designed, intended, or has the capability to cause death or serious bodily injury to a significant number of persons through the release, dissemination, or impact of toxic or poisonous chemicals or their precursors;
3) any weapon involving a biological agent, toxin, or vector (as such terms are defined in section 178 of title 18, United States Code) that is designed, intended, or has the capability to cause death, illness, or serious bodily injury to a significant number of persons; or
4) any weapon that is designed, intended, or has the capability to release radiation or radioactivity causing death, illness, or serious bodily injury to a significant number of persons.'.
 

Never mind, I answered my own question. The cited phrase is down in 1801(h) of the original FISA law. So, this has been around for 30 years. Plus, there's a follow-on clause circumscribing the use of any such "law enforcement purpose" acquisition of surveillance information.
 

Marty's peroration should be amended to read:
"There is nothing to fear in the new FISA bill unless you make or receive international phone calls or e-mails ...."
As I read it (amateur division) US residents are most likely to be caught up in dragnet surveillance when they receive> messages from any of an unknown number of foreign targets.
Neither Marty nor Senator Bond nor any other US resident has any control of the speed dial list of OSL or the tens of thousands of Islamists in his Oort cloud. BTW, a typical cellphone can now store 200 numbers, and email lists are effectively unlimited.
 

The ridiculous thing is that Al Qaeda is NOT using phones to communicate to begin with.

Osama stopped using cell-phones back in 2001 because he became aware that the U.S. was using intelligence intercepts to try and locate him.

He now passes hand-written messages to trusted aides who convey them personally to their recipients.

Senior Al Qaeda operate similarly which is why intelligence about them has dried up.

This probably makes it harder to control cells in other countries, but he's not doing that anyway. Al Qaeda Iraq was wholly separate from Osama in Pakistan for instance.

Perhaps some untrained Jihadis might be caught using these techinques but reliance on these "hi-tech" surveillance techniques is unlikely to work.

Probably the only people swept up in this surveillance net are pollitical opponents of the Bush administration.

That's really why Bush fought so hard to keep all this secret. Revealing exactly WHO was surveilled on would disclose intense scrutiny of anti-war activists, environmentalists, Democratic legislators and governors around the country, and other "enemies list" people whose only crime was being political enemies of Bush.
 

-- Osama stopped using cell-phones back in 2001 because he became aware that the U.S. was using intelligence intercepts to try and locate him. --

.

He stopped using a satellite phone shortly after Senator Hatch announced to the world that satellite phone physical locations could be triangulated from space.
 

cboldt:

He stopped using a satellite phone shortly after Senator Hatch announced to the world that satellite phone physical locations could be triangulated from space.

While it wasn't particularly helpful of Hatch to point this out, this wasn't classified information. It's inherent in the operation of satellite (at least LEOS) phones, where physical location is needed for proper handoff between satellites (and to facilitate uplink and downlink).

But more that this, I think Hatch said that such satellite location-reporting had been previously used to locate/target al-Qaeda....

Cheers,
 

Bin Laden stopped using his satellite phone when his camp got his by a cruise missile, which kind of clued him in that he was being tracked.
 

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